Terminating the Employment Relationship

rather than later. A delay will look suspicious to a trier of fact if the employee later sues. A probationer who believes s/he is doing a good job and is then released at the very end of probation may feel more “wronged” and disgruntled, and thus more likely to try and find a legal basis upon which to claim wrongful termination.

EXAMPLE In a case before the Public Employment Relations Board (PERB), a probationary employee claimed he had been released from probation in retaliation for engaging in protected activity. The employer provided substantial evidence that it placed the employee on administrative leave and ultimately released him from probation because of performance issues. Specifically, the agency showed that it explained and documented its expectations and concerns regarding the employee’s performance prior to placing him on administrative leave. PERB held that the employee’s protected activity did not insulate him from adverse action, and that the agency met its burden of establishing that its decision to place him on administrative leave and release him from probation was based on legitimate business reasons.

Remember employees should be on their best behavior and give their best efforts when on probation. Don’t let probationary employees who exhibit subpar performance become “for cause” employees thinking performance will improve.

LCW Practice Advisor

d. Promotional Probation Typically, an agency’s rules provide for a probationary period when an employee is promoted into a higher classification. The length of that promotional probationary period is usually shorter than entry level probation since the agency is already familiar with the newly promoted employee. Disputes often arise if the promoted employee fails probation and the agency seeks to dismiss the employee. Both California and federal courts have held that promoted employees who fail probation cannot be dismissed from agency employment unless there is cause. 11 The judicial reasoning is that the employee acquires a property interest in employment by completing probation in the original position and does not lose that property interest by being promoted but failing to successfully complete the promotional probation. 12 The practical effect of these decisions is that an employer has discretion to reject a promoted probationer, but must reinstate that employee to the position from which s/he was promoted unless there is cause to terminate. Of course, if the employee engages in misconduct that would justify termination, the agency could terminate the employee “for cause” regardless of the position the employee is in at the time of the wrongdoing.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 16